Civil rights — Speech — Political — Retaliation — Demotion — When an employer demotes an employee out of a desire to prevent the employee from engaging in a protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if the employer’s actions are based on a factual mistake about the employee’s behavior

26
Fla. L. Weekly Fed. S113aTop of Form

Civil
rights — Speech — Political — Retaliation — Demotion — When an employer
demotes an employee out of a desire to prevent the employee from engaging in a
protected political activity, the employee is entitled to challenge that
unlawful action under the First Amendment and Section 1983 even if the
employer’s actions are based on a factual mistake about the employee’s behavior

JEFFREY J. HEFFERNAN, Petitioner v. CITY OF PATERSON, NEW
JERSEY, et al. U.S. Supreme Court. Case No. 14-1280. Argued January 19, 2016 —
Decided April 26, 2016. On Writ of Certiorari to the U.S. Court of Appeals for
the Third Circuit.

Syllabus 

Petitioner Heffernan was a
police officer working in the office of Paterson, New Jersey’s chief of police.
Both the chief of police and Heffernan’s supervisor had been appointed by
Paterson’s incumbent mayor, who was running for re-election against Lawrence
Spagnola, a good friend of Heffernan’s. Heffernan was not involved in
Spagnola’s campaign in any capacity. As a favor to his bedridden mother,
Heffernan agreed to pick up and deliver to her a Spagnola campaign yard sign.
Other police officers observed Heffernan speaking to staff at a Spagnola
distribution point while holding the yard sign. Word quickly spread throughout
the force. The next day, Heffernan’s supervisors demoted him from detective to
patrol officer as punishment for his “overt involvement” in Spagnola’s
campaign. Heffernan filed suit, claiming that the police chief and the other
respondents had demoted him because, in their mistaken view, he had engaged in
conduct that constituted protected speech. They had thereby “depriv[ed]” him of
a “right . . . secured by the Constitution.” 42 U.S.C. §1983. The District
Court, however, found that Heffernan had not been deprived of any
constitutionally protected right because he had not engaged in any First
Amendment conduct. Affirming, the Third Circuit concluded that Heffernan’s
claim was actionable under §1983 only if his employer’s action was prompted by
Heffernan’s actual, rather than his perceived, exercise of his free-speech
rights.

Held:

1. When an employer demotes
an employee out of a desire to prevent the employee from engaging in protected
political activity, the employee is entitled to challenge that unlawful action
under the First Amendment and §1983 even if, as here, the employer’s actions
are based on a factual mistake about the employee’s behavior. To answer the
question whether an official’s factual mistake makes a critical legal
difference, the Court assumes that the activities that Heffernan’s supervisors
mistakenly thought he had engaged in are of a kind that they cannot
constitutionally prohibit or punish. Section 1983 does not say whether the
“right” protected primarily focuses on the employee’s actual activity or on the
supervisor’s motive. Neither does precedent directly answer the question. In Connick
v. Myers, 461 U.S. 138, Garcetti v. Ceballos, 547 U.S.
410, and Pickering v. Board of Ed. of Township High School Dist. 205,
Will Cty., 391 U.S. 563, there were no factual mistakes: The only question
was whether the undisputed reason for the adverse action was in fact protected
by the First Amendment. However, in Waters v. Churchill, 511 U.S.
661, a government employer’s adverse action was based on a mistaken belief that
an employee had not engaged in protected speech. There, this Court
determined that the employer’s motive, and particularly the facts as the
employer reasonably understood them, mattered in determining that the employer
had not violated the First Amendment. The government’s motive likewise matters
here, where respondents demoted Heffernan on the mistaken belief that he had
engaged in protected speech. A rule of law finding liability in these
circumstances tracks the First Amendment’s language, which focuses upon the
Government’s activity. Moreover, the constitutional harm — discouraging
employees from engaging in protected speech or association — is the same
whether or not the employer’s action rests upon a factual mistake. Finally, a
rule of law imposing liability despite the employer’s factual mistake is not
likely to impose significant extra costs upon the employer, for the employee
bears the burden of proving an improper employer motive. Pp. 3-8.

777 F. 3d 147, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which
ROBERTS, C. J., and KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.
THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.

__________________

JUSTICE
BREYER delivered the opinion of the Court.

The First Amendment generally prohibits government officials
from dismissing or demoting an employee because of the employee’s engagement in
constitutionally protected political activity. See Elrod v. Burns,
427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980); but
cf. Civil Service Comm’n v. Letter Carriers, 413 U.S. 548, 564
(1973). In this case a government official demoted an employee because the
official believed, but incorrectly believed, that the employee had
supported a particular candidate for mayor. The question is whether the
official’s factual mistake makes a critical legal difference. Even though the
employee had not in fact engaged in protected political activity, did his
demotion “deprive” him of a “right . . . secured by the Constitution”? 42
U.S.C. §1983. We hold that it did.

I

To decide the legal question presented, we assume the
following, somewhat simplified, version of the facts: In 2005, Jeffrey
Heffernan, the petitioner, was a police officer in Paterson, New Jersey. He
worked in the office of the Chief of Police, James Wittig. At that time, the
mayor of Paterson, Jose Torres, was running for reelection against Lawrence
Spagnola. Torres had appointed to their current positions both Chief Wittig and
a subordinate who directly supervised Heffernan. Heffernan was a good friend of
Spagnola’s.

During the campaign, Heffernan’s mother, who was bedridden,
asked Heffernan to drive downtown and pick up a large Spagnola sign. She wanted
to replace a smaller Spagnola sign, which had been stolen from her front yard.
Heffernan went to a Spagnola distribution point and picked up the sign. While
there, he spoke for a time to Spagnola’s campaign manager and staff. Other
members of the police force saw him, sign in hand, talking to campaign workers.
Word quickly spread throughout the force.

The next day, Heffernan’s supervisors demoted Heffernan from
detective to patrol officer and assigned him to a “walking post.” In this way
they punished Heffernan for what they thought was his “overt involvement” in
Spagnola’s campaign. In fact, Heffernan was not involved in the campaign but
had picked up the sign simply to help his mother. Heffernan’s supervisors had
made a factual mistake.

Heffernan subsequently filed this lawsuit in federal court.
He claimed that Chief Wittig and the other respondents had demoted him because
he had engaged in conduct that (on their mistaken view of the facts)
constituted protected speech. They had thereby “depriv[ed]” him of a “right . .
. secured by the Constitution.” Rev. Stat. §1979, 42 U.S.C. §1983.

The District Court found that Heffernan had not engaged in
any “First Amendment conduct,” 2 F. Supp. 3d 563, 580 (NJ 2014); and, for that
reason, the respondents had not deprived him of any constitutionally protected
right. The Court of Appeals for the Third Circuit affirmed. It wrote that “a
free-speech retaliation claim is actionable under §1983 only where the adverse
action at issue was prompted by an employee’s actual, rather than perceived,
exercise of constitutional rights.” 777 F. 3d 147, 153 (2015) (citing Ambrose
v. Robinson, 303 F. 3d 488, 496 (CA3 2002); emphasis added).
Heffernan filed a petition for certiorari. We agreed to decide whether the
Third Circuit’s legal view was correct. Compare 777 F. 3d, at 153 (case below),
with Dye v. Office of Racing Comm’n, 702 F. 3d 286, 300 (CA6
2012) (similar factual mistake does not affect the validity of the government
employee’s claim).

II

With a few exceptions, the Constitution prohibits a
government employer from discharging or demoting an employee because the
employee supports a particular political candidate. See Elrod v. Burns,
supra; Branti v. Finkel, supra. The basic
constitutional requirement reflects the First Amendment’s hostility to
government action that “prescribe[s] what shall be orthodox in politics.” West
Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943). The
exceptions take account of “practical realities” such as the need for
“efficiency” and “effective[ness]” in government service. Waters v. Churchill,
511 U.S. 661, 672, 675 (1994); see also Civil Service Comm’n, supra,
at 564 (neutral and appropriately limited policy may prohibit government
employees from engaging in partisan activity), and Branti, supra,
at 518 (political affiliation requirement permissible where affiliation is “an
appropriate requirement for effective performance of the public office
involved”).

In order to answer the question presented, we assume that
the exceptions do not apply here. But see infra, at 8. We assume
that the activities that Heffernan’s supervisors thought he had engaged
in are of a kind that they cannot constitutionally prohibit or punish, see Rutan
v. Republican Party of Ill., 497 U.S. 62, 69 (1990) (“joining,
working for or contributing to the political party and candidates of their own
choice”), but that the supervisors were mistaken about the facts. Heffernan had
not engaged in those protected activities. Does Heffernan’s constitutional case
consequently fail?

The text of the relevant statute does not answer the
question. The statute authorizes a lawsuit by a person “depriv[ed]” of a “right
. . . secured by the Constitution.” 42 U.S.C. §1983. But in this context, what
precisely is that “right?” Is it a right that primarily focuses upon (the
employee’s) actual activity or a right that primarily focuses upon (the
supervisor’s) motive, insofar as that motive turns on what the supervisor
believes that activity to be? The text does not say.

Neither does precedent directly answer the question. In some
cases we have used language that suggests the “right” at issue concerns the
employee’s actual activity. In Connick v. Myers, 461 U.S. 138
(1983), for example, we said that a court should first determine whether the
plaintiff spoke “ ‘as a citizen’ ” on a “ ‘matter[ ] of public concern,’ ” id.,
at 143. We added that, if the employee has not engaged in what can “be
fairly characterized as constituting speech on a matter of public concern, it
is unnecessary for us to scrutinize the reasons for her discharge.” Id., at
146. We made somewhat similar statements in Garcetti v. Ceballos,
547 U.S. 410, 418 (2006) [19 Fla. L. Weekly Fed. S203a], and Pickering v.
Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563
(1968).

These cases, however, did not present the kind of question
at issue here. In Connick, for example, no factual mistake was at issue.
The Court assumed that both the employer and the employee were at every stage
in agreement about the underlying facts: that the employer dismissed the
employee because of her having circulated within the office a document that
criticized how the office was being run (that she had in fact circulated). The
question was whether the circulation of that document amounted to
constitutionally protected speech. If not, the Court need go no further.

Neither was any factual mistake at issue in Pickering. The
Court assumed that both the employer (a school board) and the employee
understood the cause for dismissal, namely, a petition that the employee had
indeed circulated criticizing his employer’s practices. The question concerned
whether the petition was protected speech. Garcetti is substantially
similar. In each of these cases, the only way to show that the employer’s
motive was unconstitutional was to prove that the controversial statement or
activity — in each case the undisputed reason for the firing — was in fact
protected by the First Amendment.

Waters v. Churchill, 511 U.S. 661
(1994), is more to the point. In that case the Court did consider the
consequences of an employer mistake. The employer wrongly, though reasonably,
believed that the employee had spoken only on personal matters not of public
concern, and the employer dismissed the employee for having engaged in that
unprotected speech. The employee, however, had in fact used words that did not
amount to personal “gossip” (as the employer believed) but which focused on
matters of public concern. The Court asked whether, and how, the employer’s
factual mistake mattered.

The Court held that, as long as the employer (1) had
reasonably believed that the employee’s conversation had involved personal
matters, not matters of public concern, and (2) had dismissed the employee
because of that mistaken belief, the dismissal did not violate the First
Amendment. Id., at 679-680. In a word, it was the employer’s motive, and
in particular the facts as the employer reasonably understood them, that
mattered.

In Waters, the employer reasonably but mistakenly
thought that the employee had not engaged in protected speech. Here the
employer mistakenly thought that the employee had engaged in protected
speech. If the employer’s motive (and in particular the facts as the employer
reasonably understood them) is what mattered in Waters, why is the same
not true here? After all, in the law, what is sauce for the goose is normally
sauce for the gander.

We conclude that, as in Waters, the government’s
reason for demoting Heffernan is what counts here. When an employer demotes an
employee out of a desire to prevent the employee from engaging in political
activity that the First Amendment protects, the employee is entitled to
challenge that unlawful action under the First Amendment and 42 U.S.C. §1983 —
even if, as here, the employer makes a factual mistake about the employee’s
behavior.

We note that a rule of law finding liability in these
circumstances tracks the language of the First Amendment more closely than
would a contrary rule. Unlike, say, the Fourth Amendment, which begins by
speaking of the “right of the people to be secure in their persons, houses,
papers, and effects . . . ,” the First Amendment begins by focusing upon the
activity of the Government. It says that “Congress shall make no law . . .
abridging the freedom of speech.” The Government acted upon a constitutionally
harmful policy whether Heffernan did or did not in fact engage in political
activity. That which stands for a “law” of “Congress,” namely, the police
department’s reason for taking action, “abridge[s] the freedom of speech” of
employees aware of the policy. And Heffernan was directly harmed, namely,
demoted, through application of that policy.

We also consider relevant the constitutional implications of
a rule that imposes liability. The constitutional harm at issue in the ordinary
case consists in large part of discouraging employees — both the employee
discharged (or demoted) and his or her colleagues — from engaging in protected
activities. The discharge of one tells the others that they engage in protected
activity at their peril. See, e.g., Elrod, 427 U.S., at 359
(retaliatory employment action against one employee “unquestionably inhibits
protected belief and association” of all employees). Hence, we do not require
plaintiffs in political affiliation cases to “prove that they, or other
employees, have been coerced into changing, either actually or ostensibly,
their political allegiance.” Branti, 445 U.S., at 517. The employer’s
factual mistake does not diminish the risk of causing precisely that same harm.
Neither, for that matter, is that harm diminished where an employer announces a
policy of demoting those who, say, help a particular candidate in the mayoral
race, and all employees (including Heffernan), fearful of demotion, refrain
from providing any such help. Cf. Gooding v. Wilson, 405 U.S.
518, 521 (1972) (explaining that overbreadth doctrine is necessary “because
persons whose expression is constitutionally protected may well refrain from
exercising their rights for fear of criminal sanctions”). The upshot is that a
discharge or demotion based upon an employer’s belief that the employee has
engaged in protected activity can cause the same kind, and degree, of
constitutional harm whether that belief does or does not rest upon a factual
mistake.

Finally, we note that, contrary to respondents’ assertions,
a rule of law that imposes liability despite the employer’s factual mistake
will not normally impose significant extra costs upon the employer. To win, the
employee must prove an improper employer motive. In a case like this one, the employee
will, if anything, find it more difficult to prove that motive, for the
employee will have to point to more than his own conduct to show an employer’s
intent to discharge or to demote him for engaging in what the employer
(mistakenly) believes to have been different (and protected) activities. We
concede that, for that very reason, it may be more complicated and costly for
the employee to prove his case. But an employee bringing suit will ordinarily
shoulder that more complicated burden voluntarily in order to recover the
damages he seeks.

III

We now relax an assumption underlying our decision. We have
assumed that the policy that Heffernan’s employers implemented violated the
Constitution. Supra, at 3. There is some evidence in the record,
however, suggesting that Heffernan’s employers may have dismissed him pursuant
to a different and neutral policy prohibiting police officers from overt
involvement in any political campaign. See Brief for United States as Amicus
Curiae 27-28. Whether that policy existed, whether Heffernan’s supervisors were
indeed following it, and whether it complies with constitutional standards, see
Civil Service Comm’n, 413 U.S., at 564, are all matters for the lower
courts to decide in the first instance. Without expressing views on the matter,
we reverse the judgment of the Third Circuit and remand the case for such
further proceedings consistent with this opinion.

It
is so ordered.

__________________

JUSTICE THOMAS, with whom JUSTICE ALITO joins, dissenting.

Today the Court holds that a public employee may bring a
federal lawsuit for money damages alleging a violation of a constitutional
right that he concedes he did not exercise. Ante, at 1. Because federal
law does not provide a cause of action to plaintiffs whose constitutional
rights have not been violated, I respectfully dissent.

I

This lawsuit concerns a decision by the city of Paterson,
New Jersey (hereinafter City), to demote one of its police officers, Jeffrey
Heffernan. At the time of Heffernan’s demotion, Paterson’s mayor, Jose Torres,
was running for reelection against one of Heffernan’s friends, Lawrence
Spagnola. The police chief demoted Heffernan after another officer assigned to
Mayor Torres’ security detail witnessed Heffernan pick up a Spagnola campaign
sign when Heffernan was off duty. Heffernan claimed that he picked up the sign
solely as an errand for his bedridden mother. Heffernan denied supporting or
associating with Spagnola’s campaign and disclaimed any intent to communicate
support for Spagnola by retrieving the campaign sign. Despite Heffernan’s
assurances that he was not engaged in protected First Amendment activity, he
filed this lawsuit alleging that his employer violated his First Amendment
rights by demoting him based on its mistaken belief that Heffernan had
communicated support for the Spagnola campaign.

II

Title 42 U.S.C. §1983 provides a cause of action against
“[e]very person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State . . . subjects . . . any citizen of the United States .
. . to the deprivation of any rights, privileges, or immunities secured by the
Constitution.” For Heffernan to prevail on his §1983 claim, then, a state actor
must have deprived him of a constitutional right. Nothing in the text of §1983
provides a remedy against public officials who attempt but fail to violate
someone’s constitutional rights.

There are two ways to frame Heffernan’s First Amendment
claim, but neither can sustain his suit. As in most §1983 suits, his claim
could be that the City interfered with his freedom to speak and assemble. But
because Heffernan has conceded that he was not engaged in protected speech or
assembly when he picked up the sign, the majority must resort to a second, more
novel framing. It concludes that Heffernan states a §1983 claim because the
City unconstitutionally regulated employees’ political speech and Heffernan was
injured because that policy resulted in his demotion. See ante, at 6.
Under that theory, too, Heffernan’s §1983 claim fails. A city’s policy, even if
unconstitutional, cannot be the basis of a §1983 suit when that policy does not
result in the infringement of the plaintiff’s constitutional rights.

A

To state a claim for retaliation in violation of the First
Amendment, public employees like Heffernan must allege that their employer
interfered with their right to speak as a citizen on a matter of public
concern. Whether the employee engaged in such speech is the threshold inquiry
under the Court’s precedents governing whether a public employer violated the
First Amendment rights of its employees. See Garcetti v. Ceballos,
547 U.S. 410, 418 (2006) [19 Fla. L. Weekly Fed. S203a]. If the employee has
not spoken on a matter of public concern, “the employee has no First Amendment
cause of action based on his or her employer’s reaction to the speech.” Ibid.
If the employee did, however, speak as a citizen on a matter of public
concern, then the Court looks to “whether the relevant government entity had an
adequate justification for treating the employee differently from any other
member of the general public.” Ibid.

Under this framework, Heffernan’s claim fails at the first
step. He has denied that, by picking up the yard sign, he “spoke as a citizen
on a matter of public concern.” Ibid. In fact, Heffernan denies speaking
in support of or associating with the Spagnola campaign. He has claimed that he
picked up the yard sign only as an errand for his bedridden mother. Demoting a
dutiful son who aids his elderly, bedridden mother may be callous, but it is
not unconstitutional.

To be sure, Heffernan could exercise his First Amendment
rights by choosing not to assemble with the Spagnola campaign. Cf. Harper
& Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559
(1985) (freedom of expression “includes both the right to speak freely and the
right to refrain from speaking at all” (internal quotation marks omitted)). But
such an allegation could not save his claim here. A retaliation claim requires
proving that Heffernan’s protected activity was a cause-in-fact of the
retaliation. See University of Tex. Southwestern Medical Center v. Nassar,
570 U.S. ___, ___ (2013) [24 Fla. L. Weekly Fed. S366a] (slip op., at 23). And
Heffernan’s exercise of his right not to associate with the Spagnola campaign
did not cause his demotion. Rather, his perceived association with the
Spagnola campaign did.

At bottom, Heffernan claims that the City tried to interfere
with his constitutional rights and failed. But it is not enough for the City to
have attempted to infringe his First Amendment rights. To prevail on his claim,
he must establish that the City actually did so. The City’s attempt
never ripened into an actual violation of Heffernan’s constitutional rights
because, unbeknownst to the City, Heffernan did not support Spagnola’s
campaign.

Though, in criminal law, a factually impossible attempt like
the City’s actions here could constitute an attempt,* there is no such doctrine
in tort law. A plaintiff may maintain a suit only for a completed tort;
“[t]here are no attempted torts.” United States v. Stefonek, 179
F. 3d 1030, 1036 (CA7 1999) (internal quotation marks omitted); see also Sebok,
Deterrence or Disgorgement? Reading Ciraolo After Campbell, 64
Md. L. Rev. 541, 565 (2005) (same). And “there can be no doubt that claims
brought pursuant to §1983 sound in tort.” Monterey v. Del Monte Dunes
at Monterey, Ltd., 526 U.S. 687, 709 (1999). Because Heffernan could claim
at most that the City attempted to interfere with his First Amendment rights,
he cannot prevail on a claim under the theory that the City infringed his right
to speak freely or assemble.

B

To get around this problem of factual impossibility, the
majority reframes Heffernan’s case as one about the City’s lack of power to act
with unconstitutional motives. See ante, at 4. Under the majority’s
view, the First Amendment prohibits the City from taking an adverse employment
action intended to impede an employee’s rights to speak and assemble,
regardless of whether the City has accurately perceived an employee’s political
affiliation. The majority surmises that an attempted violation of an employee’s
First Amendment rights can be just as harmful as a successful deprivation of
First Amendment rights. Ante, at 7. And the majority concludes that the
City’s demotion of Heffernan based on his wrongfully perceived association with
a political campaign is no different from the City’s demotion of Heffernan
based on his actual association with a political campaign. Ante, at 6.

But §1983 does not provide a cause of action for
unauthorized government acts that do not infringe the constitutional rights of
the §1983 plaintiff. See Blessing v. Freestone, 520 U.S. 329, 340
(1997) (“In order to seek redress through §1983, . . . a plaintiff must assert
the violation of a federal right, not merely a violation of federal law”).
Of course the First Amendment “focus[es] upon the activity of the Government.” Ante,
at 6. See Amdt. 1 (“Congress shall make no law . . .”). And here, the “activity
of Government” has caused Heffernan harm, namely, a demotion. But harm alone is
not enough; it has to be the right kind of harm. Section 1983 provides a remedy
only if the City has violated Heffernan’s constitutional rights, not if
it has merely caused him harm. Restated in the language of tort law, Heffernan’s
injury must result from activities within the zone of interests that §1983
protects. Cf. Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. ___, ___, n. 5 (2014) [24 Fla. L. Weekly Fed. S623a] (slip op., at 11,
n. 5) (discussing the zone-of-interests test in the context of negligence per
se).

The mere fact that the government has acted
unconstitutionally does not necessarily result in the violation of an
individual’s constitutional rights, even when that individual has been injured.
Consider, for example, a law that authorized police to stop motorists
arbitrarily to check their licenses and registration. That law would violate
the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 661
(1979). And motorists who were not stopped might suffer an injury from
the unconstitutional policy; for example, they might face significant traffic
delays. But these motorists would not have a §1983 claim simply because they
were injured pursuant to an unconstitutional policy. This is because they have
not suffered the right kind of injury. They must allege, instead, that their
injury amounted to a violation of their constitutional right against
unreasonable seizures — that is, by being unconstitutionally detained.

Here too, Heffernan must allege more than an injury from an
unconstitutional policy. He must establish that this policy infringed his
constitutional rights to speak freely and peaceably assemble. Even if the
majority is correct that demoting Heffernan for a politically motivated reason
was beyond the scope of the City’s power, the City never invaded Heffernan‘s
right to speak or assemble. Accordingly, he is not entitled to money damages
under §1983 for the nonviolation of his First Amendment rights.

The majority tries to distinguish the Fourth Amendment by
emphasizing the textual differences between that Amendment and the First. See ante,
at 6 (“Unlike, say the Fourth Amendment . . ., the First Amendment begins
by focusing upon the activity of the Government”). But these textual
differences are immaterial. All rights enumerated in the Bill of Rights
“focu[s] upon the activity of the Government” by “tak[ing] certain policy
choices off the table.” District of Columbia v. Heller, 554 U.S.
570, 636 (2008) [21 Fla. L. Weekly Fed. S497a]; see also Hohfeld, Some
Fundamental Legal Conceptions As Applied in Judicial Reasoning, 23 Yale L. J.
16, 30, 55-57 (1913) (recognizing that an immunity implies a corresponding lack
of power). Fourth Amendment rights could be restated in terms of governmental
power with no change in substantive meaning. Thus, the mere fact that the First
Amendment begins “Congress shall make no law” does not broaden a citizen’s
ability to sue to vindicate his freedoms of speech and assembly.

To reach the opposite conclusion, the majority relies only
on Waters v. Churchill, 511 U.S. 661 (1994) (plurality opinion).
See ante, at 5-7. But Waters does not support the majority’s
expansion of §1983 to cases where the employee did not exercise his First
Amendment rights. The issue in Waters was whether a public employer
violated the First Amendment where it reasonably believed that the speech it
proscribed was unprotected. The Court concluded that the employer did not
violate the First Amendment because it reasonably believed the employee’s speech
was unprotected: “We have never held that it is a violation of the Constitution
for a government employer to discharge an employee based on substantively
incorrect information.” 511 U.S., at 679. And the Court reaffirmed that, to
state a First Amendment retaliation claim, the public employee must allege that
she spoke on a matter of public concern. See id., at 681.

Unlike the employee in Waters, Heffernan admits that
he was not engaged in constitutionally protected activity. Accordingly, unlike
in Waters, he cannot allege that his employer interfered with conduct
protected by the First Amendment. “[W]hat is sauce for the goose” is not “sauce
for the gander,” ante, at 6, when the goose speaks and the gander does
not.

* *
*

If the facts are as Heffernan has alleged, the City’s
demotion of him may be misguided or wrong. But, because Heffernan concedes that
he did not exercise his First Amendment rights, he has no cause of action under
§1983. I respectfully dissent.

__________________

*Factual impossibility occurs when “an actor engages in
conduct designed to culminate in the commission of an offense that is
impossible for him to consummate under the existing circumstances.” 1 P.
Robinson, Criminal Law Defenses §85, p. 422 (1984). Canonical examples include
an attempt to steal from an empty pocket, State v. Wilson, 30
Conn. 500, 505 (1862), or an attempt to commit false pretenses where the victim
had no money, People v. Arberry, 13 Cal. App. 749, 757 (1910).

* *
*